Ken Anderson Responds to State Bar's Ethics Filing

Lawyers for Williamson County State District Judge Ken Anderson said in a legal document filed Monday that the Texas State Bar’s claims that the former district attorney violated state ethics rules in the 1987 prosecution of Michael Morton are barred by the statute of limitations.

The State Bar of Texas filed a disciplinary case against Anderson last month, alleging that he deliberately withheld evidence and made false statements to the court during the trial that led to Morton’s wrongful conviction.

Morton was sentenced to life and spent nearly 25 years in prison for the August 1986 murder of his wife, Christine Morton. He was exonerated last year after DNA testing on a bloody bandana found near the crime scene was linked to another man.

Anderson, who was appointed to the district court bench by Gov. Rick Perry in 2002 and who the State Bar named “Prosecutor of the Year” in 1995, is facing civil and criminal legal action and could be disbarred if he is found to have violated professional rules of conduct in securing the wrongful conviction.

Anderson has said that he regrets the errors of the justice system in Morton’s case. But he has denied allegations that he committed wrongdoing in the prosecution. In his response to the ethics lawsuit, Anderson denied all the claims against him and asserted that the claims were prohibited under the statute of limitations.

During their investigation, Morton’s lawyers, John Raley, of the Houston law firm Raley & Bowick, and Barry Scheck and Nina Morrison of the New York-based Innocence Project, discovered items of evidence that they allege Anderson deliberately withheld from defense lawyers and from the judge.

The State Bar conducted a 10-month investigation after a grievance was filed against Anderson in the case. The State Bar’s Commission for Lawyer Discipline wrote in its lawsuit against Anderson that he knew of the evidence and withheld it. The lawsuit also alleges that Anderson made a false statement to the court when he told the judge he had no evidence that could support Morton’s claims of innocence.

His conduct, the State Bar commission wrote, violated five of the state’s disciplinary rules of professional conduct.

Those rules, though, come with a statute of limitations: “No attorney licensed to practice law in Texas may be disciplined for Professional Misconduct occurring more than four years before the time when the allegation of Professional Misconduct is brought to the attention of the Office of Chief Disciplinary Counsel, except in cases in which disbarment or suspension is compulsory.”

The statute of limitations doesn’t begin to run in cases of concealment — like what is alleged in the Morton case — until the alleged misconduct “is discovered or should have been discovered.”

Kim Bueno, spokeswoman for the State Bar, said the agency had no comment on the pending litigation, but she added, “We remain confident in the merits of the disciplinary action against Mr. Anderson.”

Morton’s lawyers discovered the allegedly hidden evidence after receiving Williamson County Sheriff’s investigative files through a public records act request in 2008. It is unclear whether they could or “should” have discovered that information earlier.

Anderson’s arguments in the civil case against him mirror those in the possible criminal case he faces. A court of inquiry that will determine whether Anderson should face criminal tampering with evidence and contempt charges is set to begin Dec. 10. In both cases, Anderson is seeking to discover when Morton’s lawyers knew about evidence that indicated his innocence and how much they knew. Anderson contended in a deposition taken last year that he would have told Morton’s lawyers about key pieces evidence during the trial in 1987.

Next in the civil case, each side will seek evidence to support their claims, requesting information and taking depositions. Anderson can choose between a civil jury trial or a bench trial in which a judge will hear the case. If Anderson’s conduct is found to constitute professional misconduct, the judge will impose sanctions, which could include a public reprimand, probated suspension of his law license, active suspension of his law license, or disbarment. The judge could also force Anderson to pay the attorneys' fees of the State Bar.

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